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United States Court of Appeals

Tenth Circuit

November 3, 2009

Elisabeth A. Shumaker
Clerk of Court




Plaintiff - Appellee,

No. 08-2277

Defendant - Appellant.


(D.C. NO. 1:07-CR-O2149-JAP-1)

James Baiamonte, Albuquerque, New Mexico, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (Gregory J. Fouratt, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for PlaintiffAppellee.

Before BRISCOE, McWILLIAMS, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction
Pedro Carbajal-Iriarte was charged in a two-count indictment with
conspiring to possess with the intent to distribute more than 500 grams of
methamphetamine, in violation of 21 U.S.C. 846, and possessing with the intent
to distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C.
841(a)(1), (b)(1)(A). Carbajal-Iriarte moved to suppress evidence recovered
from the vehicle he was driving on the grounds his consent was not voluntarily
given and the officers exceeded the scope and duration of his consent. The
district court denied the motion to suppress and a jury ultimately convicted
Carbajal-Iriarte on both counts set out in the indictment. On appeal, he
challenges the district courts refusal to suppress the drug evidence. Exercising
jurisdiction pursuant to 28 U.S.C. 1291, we AFFIRM the district courts
II. Background
On October 9, 2007, DEA Special Agent Kevin Small and Detective
Jeanette Tate of the Albuquerque Police Department were performing drug
interdiction duties at the Sky City Casino Truck Stop approximately fifty miles
west of Albuquerque, New Mexico. Wearing casual attire with their service
weapons hidden beneath their clothing, the officers employed a strategy of
approaching drivers with out-of-state plates, asking them to talk, and in some
cases requesting consent to search their vehicles.

Just before 2:00 p.m., Carbajal-Iriarte and a juvenile arrived in a white van
bearing California license plates. While Carbajal-Iriarte fueled his vehicle, Agent
Small approached, displayed his badge, and asked whether Carbajal-Iriarte was
willing to speak with him. Carbajal-Iriarte agreed. Their entire conversation was
Carbajal-Iriarte told Agent Small he lived in San Diego, but was coming to
Albuquerque to find a less-expensive place to live. Upon request, Carbajal-Iriarte
provided his license and registration, and Agent Small relayed the information to
the El Paso Intelligence Center (EPIC). 1 EPIC had no information on CarbajalIriarte, but did inform Agent Small that the van crossed the border into the United
States the previous day at a port of entry east of San Diego. After speaking with
EPIC, Agent Small returned Carbajal-Iriartes documents.
Agent Small and Detective Tate soon recognized discrepancies between
Carbajal-Iriartes statements and those of his juvenile passenger. For instance,
the juvenile claimed Carbajal-Iriarte was his father and said they were going to
stay with the juveniles uncle. Carbajal-Iriarte, however, told the officers they
were looking for a new place to live and planned to stay in a motel. CarbajalIriarte also told Agent Small the van belonged to a friend, but he could not
remember the friends name.

EPIC monitors travel and transport across United States borders and
provides information to law enforcement agencies to assist with drug, weapon,
and alien smuggling investigations.

Agent Small became suspicious and asked Carbajal-Iriarte for permission to

search the vehicle. Carbajal-Iriarte responded, You like to look, no problem.
During this time frame, Carbajal-Iriarte entered the truck stop unaccompanied to
pay for his gas. Despite a thorough search, the officers were not able to locate
any drugs. Nonetheless, given the vans recent entry into the United States,
Agent Small remained suspicious and believed Carbajal-Iriarte was transporting
drugs in a hidden compartment. In an effort to confirm his belief, Agent Small
made a number of phone calls to area law enforcement in an unsuccessful attempt
to have a drug dog brought to the van.
Agent Small then asked Carbajal-Iriarte if he had a local phone number for
his family in Albuquerque. Carbajal-Iriarte provided a number with a 915 area
code, which is assigned to El Paso, Texas. When questioned about this
discrepancy, Carbajal-Iriarte told Agent Small his family actually lived in Texas.
As his suspicions grew, Agent Small continued to contact other officers to
determine whether any were available to assist. Because of his inability to locate
a drug dog, Agent Small informed one of his fellow officers, Actually, we have
held the guy for awhile so probably what we are going to do is let him go. The
officers took a different approach, however, when Detective Tate successfully
contacted Officer Ruiloba, a dog handler with the Albuquerque Police Department
who was willing to meet them after he finished work at a nearby crime lab.
Agent Small separately coordinated with Officer Nick Ramos of the New Mexico

State Police, who had an expertise in finding hidden compartments, to conduct a

second search of the vehicle until the drug dog could arrive.
Agent Small asked Carbajal-Iriarte if he would be willing to drive toward
Albuquerque to meet other officers so they could conduct a more thorough search
of the vehicle. Carbajal-Iriarte stated, I dont have a problem with it, but told
Agent Small he would like to use the restroom first. Agent Small did not object,
but told Carbajal-Iriarte that once he was finished, Agent Small follow him onto
the highway and [w]hen we find our officer, I will turn on my lights and let you
know. The length of this initial encounter, including the first search of the van,
was approximately fifty minutes. Carbajal-Iriarte then made an unescorted
restroom visit lasting twenty minutes, after which he and the officers left the
truck stop.
Agent Small and Detective Tate followed Carbajal-Iriarte and the juvenile
east along Interstate 40 toward Albuquerque for approximately twenty miles.
According to Agent Small, Carbajal-Iriarte only drove highway speeds. He
drove 60 miles an hour, which is, this day and age, very slow, but we stayed
behind him. Once they came upon Officer Ramos in the median, Agent Small
and Detective Tate turned on their emergency lights, and Carbajal-Iriarte and the
officers pulled their vehicles onto the side of the road. Agent Small then asked
Carbajal-Iriarte again whether the officers could conduct a second search of his


vehicle. Carbajal held out his hand, pointed at the van, and indicated the officers
could search the vehicle. 2
The officers conducted another search, but still found no sign of drugs.
One hour and nine minutes after the vehicles stopped on the highway, Officer
Ruiloba arrived with a drug dog. A few minutes later, the dog alerted to the back
seat of the van. When the officers cut open the seat, they discovered twelve
bundles of methamphetamine.
Carbajal-Iriarte was indicted for conspiring to possess with intent to
distribute more than 500 grams of methamphetamine, in violation of 21 U.S.C.
846, and possessing with intent to distribute more than 500 grams of
methamphetamine, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A). CarbajalIriarte filed a motion to suppress the methamphetamine recovered from the van,
which the district court denied. Carbajal-Iriarte was ultimately convicted of both
counts. He now appeals the denial of his motion to suppress.
III. Discussion
Carbajal-Iriarte asserts the district court erred in denying his motion to
suppress because his consent was not voluntary and the search went beyond the
scope and duration of his consent. In considering a district courts denial of a
motion to suppress, this court reviews factual findings for clear error, viewing the

The officers interactions with Carbajal-Iriarte alongside the highway were

videotaped, but no sound was recorded.

evidence in the light most favorable to the government, and reviews legal
conclusions de novo. United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir.
A. Voluntariness of Consent
Whether a defendants consent to search his vehicle was voluntary is a
question of fact, and the court considers the totality of the circumstances in
making this determination. United States v. Dozal, 173 F.3d 787, 795 (10th Cir.
1999). The government bears the burden of proof on this issue, and must show
that there was no duress or coercion, express or implied, that the consent was
unequivocal and specific, and that it was freely and intelligently given. United
States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993).
Carbajal-Iriarte argues his consent to each search was not voluntary
because Agent Small never informed him he could refuse. Additionally, CarbajalIriarte claims he felt he had no choice but to comply with Agent Smalls request
to let other officers search the van alongside Interstate 40. In support of this
claim, he notes he asked permission to use the bathroom and drove at an
unusually slow rate of speed when going to meet Officer Ramos.
None of the facts referenced by Carbajal-Iriarte are sufficient to establish
the district court clearly erred in finding he voluntarily consented to the multiple
searches of his vehicle. The Supreme Court has held that a defendants consent to
a search may be voluntary even when the consenting party was not informed he

could refuse. Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973). Thus, the
mere fact Agent Small did not specifically tell Carbajal-Iriarte that he was
allowed to decline the request does not render the consent involuntary.
Furthermore, there is nothing in the record to suggest Carbajal-Iriartes
initial consent to search the vehicle at the truck stop was involuntary. The record
reveals Agent Small and Detective Tate approached him in a public place,
identified themselves as police officers, were courteous and polite, were not
uniformed, never displayed their service weapons, and did not restrict his
movement. Carbajal-Iriartes unequivocal statement, You like to look, no
problem, was not preceded by any coercive police conduct that would suggest
Carbajal-Iriartes consent was involuntary.
Additionally, Carbajal-Iriartes consent to drive twenty miles along
Interstate 40 to meet Officer Ramos for a second search was voluntary. When
asked whether he was willing to go with Agent Small and Detective Tate to a
separate location for a more thorough search, Carbajal-Iriarte replied without
hesitation, I dont have a problem with it. Again, none of the circumstances
surrounding this second consent are coercive. Carbajal-Iriartes suggestion that
his request to use the bathroom and his unusually slow driving indicate he did
not feel free to decline the officers request is unavailing because these facts, in
light of the totality of the circumstances, are insufficient to demonstrate the
district courts findings were clearly erroneous.

Carbajal-Iriarte argues this case is factually similar to United States v.

Gonzales, 763 F.2d 1127 (10th Cir. 1985). There, this court determined the
defendants consent to follow the officer to the police station was involuntarily
given. Id. at 1132. In Gonzales, however, the circumstances were coercive
because the officer held the defendants drivers license, car registration, and title
at the time of his request. Id. As a result, the court concluded the defendant had
no reasonable choice other than to accompany the officer no matter how polite the
officer was in phrasing his request. Id.
In contrast, the district court here found Agent Small returned CarbajalIriartes license and registration prior to the initial search, long before asking
Carbajal-Iriarte to drive toward Albuquerque to meet Officer Ramos. There is
nothing in the record to indicate this finding was clearly erroneous.
Consequently, Gonzales is inapposite. Absent any indication to the contrary, this
court concludes the district court did not clearly err in finding that CarbajalIriartes consent to travel twenty miles for a second search was voluntary.
Carbajal-Iriartes consent to search after meeting Officer Ramos along the
highway was also voluntary. Upon arrival, Agent Small again asked CarbajalIriarte whether he would mind if the officers conducted a second search of the
van. In light of the videotape, the district court found Carbajal-Iriarte held out
his hand indicating his consent. Carbajal-Iriarte argues his consent was not
voluntary because the officers followed him closely on the highway and activated

their emergency lights upon approaching Officer Ramos. He claims no

reasonable person would feel free to ignore a law enforcement officer under these
circumstances. Viewing the evidence in the light most favorable to the
government, however, Agent Smalls activation of his emergency lights merely
alerted Carbajal-Iriarte that they had reached their destination. Indeed, before
they left the truck stop, Agent Small informed Carbajal-Iriarte he would use this
signal. Given that Carbajal-Iriarte freely consented to meet Officer Ramos, this
court cannot conclude Agent Smalls pre-arranged use of his emergency lights
under these circumstances made the situation coercive. Accordingly, the court
concludes the district court did not clearly err in finding Carbajal-Iriartes
reiteration of his consent to search alongside the highway was voluntary.
To the extent Carbajal-Iriarte suggests his consent was the product of an
unlawful detention, we agree with the district court that Carbajal-Iriartes
encounter with Agent Small was consensual rather than a seizure. An
individuals encounter with law enforcement is consensual if a reasonable person
would feel free to disregard the police and go about his business. Florida v.
Bostick, 501 U.S. 429, 434 (1991) (quotations omitted). Again, the court looks to
the totality of the circumstances surrounding the encounter itself, including:
the location of the encounter . . . ; whether the officers touch or
physically restrain the defendant; whether the officers are uniformed
or in plain clothes; whether their weapons are displayed; the number,
demeanor and tone of voice of the officers; whether and for how long
the officers retain the defendant's personal effects such as tickets or

identification; and whether or not they have specifically advised

defendant at any time that he had the right to terminate the encounter
or refuse consent.
United States v. Thompson, 546 F.3d 1223, 1226 (10th Cir. 2008) (quotation
Carbajal-Iriartes primary argument that the encounter was not consensual
stems from Agent Smalls statement to another officer on his cell phone that we
have held the guy for awhile so probably what we are going to do is let him go.
But Agent Smalls characterization of the situation to a third party is not
dispositive. Rather, the inquiry focuses on the objective viewpoint of one in the
defendants circumstances. Bostick, 501 U.S. at 434. Carbajal-Iriarte points to
nothing in the record indicating he was aware of Agent Smalls statement, and the
officers interactions with him at the truck stop bear all the hallmarks of a
consensual encounter.
As explained above, Carbajal-Iriarte repeatedly consented to the officers
searches during the course of the consensual encounter. Under these
circumstances, Carbajal-Iriarte has provided this court with no reason to conclude
the district court clearly erred in finding he freely consented to the searches.
B. Duration of the Search
Carbajal-Iriarte next challenges the duration of the search. Whether the
search exceeded the duration of the defendants consent is a question of fact,
which this court reviews for clear error. United States v. Rosborough, 366 F.3d

1145, 1150 (10th Cir. 2004). There is no absolute rule specifying the permissible
duration of a search performed with the defendants consent. Rather, the court
asks what a reasonable person would have understood to be the scope and
duration of his consent under the circumstances. Id.
Rosborough is instructive. There, the defendant and his cousin were pulled
over for speeding and were given a written warning. Id. at 1147. After the
warning was issued, the defendant agreed to answer further questions and
ultimately consented to a general search of the vehicle, which was confined by
neither time nor location. Id. at 1147, 1151. During the search, the officer
detected an odor he believed was being used to mask the scent of drugs. Id. at
1147. This prompted the officer to call for a canine unit, which arrived forty-five
minutes into the search. Id. Soon after, the drug dog alerted toward the front
passenger area. Id. at 1148. At that point, the defendant and his cousin attempted
to revoke their consent to the search, but because a canines positive alert creates
general probable cause to search a vehicle, the officers continued their search and
ultimately located thirty pounds of cocaine hidden in the trunk. Id. at 1148, 1153.
Rosborough sought suppression of the cocaine on the grounds that the
portion of the search prior to the canine alert, which lasted just under an hour,
exceeded the duration of his consent. This court affirmed the district courts
denial of the motion to suppress because Rosboroughs general consent was


confined by neither time nor location and the officers acted with diligence in
conducting the search. Id. at 1151.
Likewise, the search here did not exceed the duration of Carbajal-Iriartes
consent. Carbajal-Iriarte characterizes the search as occurring in two different
locations over a span of two hours. This description ignores the multiple consents
to search given by Carbajal-Iriarte. That Carbajal-Iriarte repeatedly consented to
these searches favors the conclusion that the duration of the search was
reasonable. See id. at 1151-52. The first search at the truck stop lasted
approximately half an hour, after which Carbajal-Iriarte agreed to go with Agent
Small and Detective Tate to meet Officer Ramos for a second search. After
arriving at Officer Ramoss location along Interstate 40, Carbajal-Iriarte
reaffirmed his consent for the search. From the time of Carbajal-Iriartes last
consent, the search lasted just over an hour, only slightly longer than the search at
issue in Rosborough. Once Officer Ruiloba arrived with the drug dog, the dog
alerted to the presence of methamphetamine within a matter of minutes.
A variety of other facts also support the district courts findings. CarbajalIriartes consent contained no limitation on the duration of the search and can
only be described as giving the officers general permission to search the vehicle.
At no time did Carbajal-Iriarte seek to limit the duration of the search, nor did the
officers create the understanding that the search would be brief. It is also
noteworthy that Carbajal-Iriartes last consent was provided after voluntarily

traveling to meet another officer for the express purpose of a search, as opposed
to the search in Rosborough, which stemmed from a traffic stop. Finally, there is
no indication, and Carbajal-Iriarte does not argue, that the officers failed to act
with due diligence in conducting the search.
In light of all of these circumstances, the district courts finding that the
search was of a duration permitted by Carbajal-Iriartes consent was not clearly
C. Scope of Consent
Carbajal-Iriarte also argues the officers exceeded the scope of his consent
when they cut open the upholstery of the van seat. He argues voluntary consent
does not include consent to destroy the defendants property in the course of the
search. See United States v. Osage, 235 F.3d 518, 521-22 (10th Cir. 2000);
United States v. Strickland, 902 F.2d 937, 942 (10th Cir. 1990). Osage, however,
held only that an officer may not destroy or render completely useless a
container which would otherwise be within the scope of a permissive search
based on general consent alone, but must instead either obtain explicit
authorization, or have some other, lawful, basis upon which to proceed. 235
F.3d at 522 (emphasis added). Likewise, Strickland held that even though the
defendants consent did not authorize the officers to cut open his spare tire, the
search was nonetheless permissible because the officers obtained probable cause


to search the tire during the portion of the search to which the defendant did
consent. 902 F.2d at 941-43.
Here, the officers had an independent legal basis upon which to proceed
because the dogs positive alert to the presence of drugs in the van provided
probable cause. See United States v. Ludwig, 10 F.3d 1523, 1527-28 (10th Cir.
1993). As a result, it is immaterial whether Carbajal-Iriarte consented to cutting
open the seat. Once the officers had probable cause to search the seat, his consent
was no longer necessary. Accordingly, the district court did not err in refusing to
suppress the drugs recovered from the seat.
D. Other Arguments
Finally, Carbajal-Iriarte makes a variety of arguments regarding the need to
apply the exclusionary rule in this case, due to Agent Smalls conduct, under the
Supreme Courts recent decision in Herring v. United States, 129 S. Ct. 695
(2009). Without the presence of a Fourth Amendment violation, however, this
court need not undertake the further inquiry of whether Agent Smalls conduct
warrants application of the exclusionary rule.
IV. Conclusion
Because the district court did not clearly err in finding that CarbajalIriartes consent was voluntary or that the searches were within the duration and
scope of his consent, the decision of the district court is hereby AFFIRMED.